Opinion
A152212
10-03-2018
CARMEN GARCIA, Individually and as Successor in Interest, etc., et al., Plaintiffs and Appellants, v. MENH TRIEU et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV538299)
Plaintiffs Carmen Garcia, Ignacio Serrano, and Lorenzo Serrano, the parents and brother of decedent Yanira Serrano, appeal a summary judgment in favor of defendants Deputy Sheriff Menh Trieu and the County of San Mateo, which employs Trieu, on a complaint seeking damages for Trieu's fatal shooting of Yanira. The shooting occurred when Trieu responded to a 911 call reporting that Yanira, who suffered from schizophrenia, was refusing to take her medication, yelling, and acting violently. When Trieu approached plaintiffs' home, Yanira reacted by advancing toward him while brandishing a knife, pursuing him as he retreated, and disregarded his orders to stop until he fired a single, fatal shot. Plaintiffs contend the trial court erred in concluding that on the undisputed facts no reasonable jury could find that Trieu had acted unreasonably, and that none of the factual disputes plaintiffs identified is material. Plaintiffs also contend the court abused its discretion in sustaining objections to a contrary opinion of their expert on police practices. We disagree and therefore shall affirm the judgment.
To avoid confusion and without intending any disrespect, we refer to Yanira Serrano by her first name.
Factual and Procedural Background
Before filing this action, plaintiffs filed an action in federal court under 42 United States Code section 1983, asserting claims for alleged violations of federal constitutional rights, and also state law claims. The federal district court granted summary judgment on the federal claims and declined to exercise its pendent jurisdiction over the state-law claims. While we take note of the Ninth Circuit Court of Appeals decision affirming that ruling, it is undisputed that federal and California law governing excessive-force claims differ significantly. (See Hayes v. County of San Diego (2013) 57 Cal.4th 622, 638-639 (Hayes).) Defendants do not contend that the federal judgment has any preclusive effect in this case.
Plaintiffs Carmen Garcia and Ignacio Serrano, in their capacity as Yanira Serrano's successors in interest (Code Civ. Proc., § 377.30 et seq.), assert causes of action for assault and battery and for negligence that survived Yanira's death. All three plaintiffs in their individual capacities assert a cause of action for wrongful death.
Defendants moved for summary judgment on the ground that the undisputed facts establish as a matter of law that no reasonable jury could find Trieu's conduct immediately preceding and including the shooting to have been unreasonable. In opposition, plaintiffs submitted evidence concerning some details of Trieu's conduct preceding the shooting that differed from Trieu's version of the facts. Plaintiffs also submitted a report by police practices expert Roger Clark expressing the opinion that Trieu engaged in unreasonably aggressive pre-shooting actions that created the need for the use of force against Yanira.
Defendants also argued and the trial court also ruled in the alterative that the shooting constituted a justifiable homicide for purposes of Penal Code section 196, which would immunize Trieu from civil liability. Because we agree with the court's primary ruling that the undisputed facts establish as a matter of law that Trieu's conduct was not unreasonable, we need not evaluate that alternative holding.
The trial court sustained objections that Clark's opinion was based on speculation and facts not supported by the evidence. It held that the factual disputes plaintiffs identified were not material and that on the undisputed facts no reasonable jury could find Trieu's conduct unreasonable. It thus granted defendants' motion for summary judgment.
Defendants' evidence established the following facts, all undisputed except as noted. At 9:23 p.m. on June 3, 2014, San Mateo County Public Safety Communications dispatched police and other units to plaintiffs' home in a community housing development near Half Moon Bay. The dispatcher stated that the call involved a "violent 5150," i.e., a person who has a mental disorder causing her to pose a threat to herself or others, and who may be taken into custody under Welfare and Institutions Code section 5150 for evaluation and treatment. Deputy Trieu heard the dispatcher describe the subject as an 18-year-old named Yanira Serrano who had schizophrenia, and who was refusing to take her medication, yelling, and being violent.
Citing the rule that a court may deny summary judgment based on lack of credibility if the only proof of a material fact is a declaration by the lone witness to that fact (Code Civ. Proc., § 437c, subd. (e)), plaintiffs deemed several material facts "[d]isputed" on the sole ground that they were based on the testimony or declaration of Trieu, whose credibility had allegedly been "undermined by five eyewitnesses" with regard to issues unrelated to the facts deemed "disputed." Plaintiffs do not challenge the trial court's rejection of this argument.
Trieu drove alone in his patrol car toward plaintiffs' address, while his partner, Deputy Chaput, did the same in another patrol car, accompanied by a police dog. After Trieu and Chaput reached the development, each began to search for plaintiffs' address, which their GPS could not pinpoint. As they searched, the dispatcher broadcast periodic updates. The dispatcher first stated that Yanira had left the house and entered a vehicle. Later she added that Yanira had taken her medication and grown calmer, that she had only been yelling at her mother, and that she was returning home. But then the dispatcher reported that Yanira had left the home holding a knife, and that the person who had called 911 (subsequently identified as Yanira's brother, plaintiff Lorenzo Serrano) was asking her to relinquish it. That is the last update regarding Yanira that either party contends Deputy Trieu heard before leaving his patrol car.
After another officer broadcast clarifying information that enabled Trieu to locate plaintiffs' residence, he double-parked his patrol car around a nearby corner. He immediately left his car and ran toward the home. He was wearing a utility belt with a taser, pepper spray, and gun.
Although the evidence conflicted as to whether Trieu walked toward the home, as he described, or ran, as others described, defendants assumed for purposes of the summary judgment motion that he ran, as plaintiffs contend. This was the most significant conflict in the evidence that the court considered immaterial.
As he approached the home, Trieu heard yelling and agitation from several parties and saw at least two people—who he later learned were Yanira's brother and mother—near where he thought the home was. When Yanira saw Trieu approach, she took two steps back and then began to move toward him, holding an 11-inch steak knife with a wooden handle, a 6-inch blade, and a pointed tip. As she did so, her brother yelled at Trieu to "Wa-Wa-Watch out!" Seeing Yanira approaching him with a knife, Trieu stepped back into the street between two parked cars and repeatedly yelled "Hey" at her. Yanira continued to move towards him, and Trieu began to backpedal away from her, toward his patrol car.
The evidence conflicts as to whether Yanira's father was also near the home, another difference in the evidence that is immaterial.
Plaintiffs deemed this fact "disputed" in part because the evidence that defendants cited included a translated transcription of plaintiff Lorenzo Serrano's 911 call, to which plaintiffs asserted hearsay and foundation objections. Plaintiffs do not challenge the trial court's failure to sustain these objections.
Trieu then turned and began to run down the street. He periodically looked back over his shoulder and ordered Yanira to "stop." She did not comply and continued to pursue him with knife upraised. She looked angry, cursed in Spanish, and yelled, "You are not going to take me away!" and "leave!" After Trieu passed his car, he stopped, turned to face Yanira, drew his gun, and ordered her at least twice to "Stop." She did not. When Yanira was between 8 and 20 feet away, still advancing with knife upraised, Trieu fired a single shot that struck her in the chest, killing her. Between the brother's warning to "watch out" and the firing of the shot, roughly 12.5 seconds had elapsed. In that time, Yanira had traveled approximately 150 to 170 feet.
Discussion
1. Standard of Review
Summary judgment is proper "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "A defendant may make this showing by demonstrating that the plaintiff cannot establish one or more elements of all of his causes of action. [Citation.] This court reviews an order granting a motion for summary judgment de novo." (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1107.) "We liberally construe the evidence in support of the plaintiff opposing summary judgment and resolve doubts concerning the evidence in his favor." (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 7.)
2. The trial court correctly concluded that based on all the circumstances a reasonable jury could not find that Trieu acted unreasonably
The parties do not dispute that plaintiffs' causes of action require proof that Trieu's use of force was unreasonable. Nor do they disagree that the circumstances leading to the shooting must be considered in determining the reasonableness of the officer's conduct. (Hayes, supra, 57 Cal.4th 622.) In Hayes the California Supreme Court answered a certified question from the Ninth Circuit Court of Appeal, which it restated as follows: " '[w]hether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force.' " (Id. at p. 626.) The court's answer was "that such liability can arise if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly force was unreasonable." (Ibid.)
The assessment of reasonableness is governed by long-settled principles reiterated in Hayes: "[A]s the nation's high court has observed, '[t]he "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.' (Graham v. Connor (1989) 490 U.S. 386, 396.) "[A]s long as an officer's conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that he or she choose the "most reasonable" action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a violent suspect, in order to avoid liability for negligence.' (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 537-538.)" (Hayes, supra, 57 Cal.4th at p. 632.)
"Although preshooting conduct is included in the totality of circumstances," the Supreme Court did "not want to suggest that a particular preshooting protocol (such as a background check or consultation with psychiatric experts) is always required. Law enforcement personnel have a degree of discretion as to how they choose to address a particular situation. Summary judgment is appropriate when the trial court determines that, viewing the facts most favorably to the plaintiff, no reasonable juror could find negligence." (Hayes, supra, 57 Cal.4th at p. 632.)
Plaintiffs argue that the trial court erred in granting summary judgment for two reasons: (1) a reasonable jury could find that Trieu acted unreasonably before the shooting because, while assertedly knowing that there was no immediate danger to Yanira's family, he "ran headlong into what he knew was a potentially dangerous scene involving an unpredictable (mentally ill) girl who was possibly armed with a knife," rather than waiting for Deputy Chaput to arrive with his canine and then making "a quiet and cautious approach," and (2) there are triable factual disputes, namely, whether Trieu walked from his car toward plaintiffs' home while pausing to observe the scene, or immediately ran toward the house; whether Yanira sprinted toward him without physical limitations or had a hobbling, limping gait; and whether Yanira was 8 to 10 feet or 15 to 20 feet away when he shot her. Both arguments fail.
It is undisputed that the final report by the dispatcher that Trieu would have heard before he left his vehicle was that Yanira had exited the home holding a knife, and that the 911 caller was asking her to give it up. Given that circumstance, it was entirely reasonable for Trieu to conclude that he should proceed immediately to the area outside plaintiffs' home—located in a residential development where a person with schizophrenia had recently been sufficiently agitated to prompt a 911 call, and was now standing outside and refusing to relinquish a deadly weapon, while members of her family were at an unknown distance from her, and nothing prevented a passerby from entering the area.
Plaintiffs' contention, in effect, is that the only reasonable approach for Trieu to have taken was to refrain from approaching plaintiffs' home until Deputy Chaput arrived with his dog, observe the scene, formulate a plan with Chaput, and then approach the home. However, even assuming that this approach would have been reasonable, it does not follow that Trieu's approach was unreasonable, or that a fact finder could reasonably so determine. (See Hayes, supra, 57 Cal.4th at p. 632 [no particular preshooting protocol is required in every case].)
As stated in Brown v. Ransweiler, supra, 171 Cal.App.4th 516, and repeated in Hayes, supra, 57 Cal.4th 622, "The law [governing use of force] has never been applied to suggest that there is only one reasonable action that an officer may take under a given set of circumstances. There will virtually always be a range of conduct that is reasonable. As long as an officer's conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that he or she choose the 'most reasonable' action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a violent suspect . . . ." (Brown, supra, at pp. 537-538.) In Hayes, the court added, "Law enforcement personnel have a degree of discretion as to how they choose to address a particular situation." (57 Cal.4th at p. 632.)
In this case, plaintiffs' arguments show only that the approach they identify was among the range of approaches that Trieu might have followed, not that a reasonable jury could find that the approach he did choose was outside that range. Even if, with the benefit of hindsight, it appears that the approach plaintiffs contend should have been followed was more reasonable, or could have averted the tragic outcome, that is not the test of negligence. Here, Trieu initially backed away and ran from Yamira as she approached him threateningly with a knife upraised, repeatedly ordered her to stop, and fired when she was but a second or two away from reaching him. The trial court did not err in ruling as a matter of law that no reasonable jury could find that Trieu acted unreasonably in this fluid and tension-filled situation. (Brown v. Ransweiler, supra, 171 Cal.App.4th at p. 537 ["[W]hile it is easy, with the benefit of hindsight, to make suggestions as to how [officers] might have responded differently to [a] situation, the fact that [they] were making these decisions in real time and in response to rapidly changing circumstances is a factor to consider in determining the reasonableness of their actions."].)
The trial court correctly determined that none of the factual disputes that plaintiffs identify creates a triable issue as to a material fact. While the witnesses differed as to whether Trieu walked or ran towards the house when he arrived at the scene, defendants assumed for the purpose of the summary judgment motion that Trieu left his patrol car and immediately ran toward the house, as plaintiffs' witnesses stated. Whether one characterizes Yanira as having hobbled, walked, run with a limp, or run without impairment, and whether she was 8 to 10 feet or 15 to 20 feet from Trieu when he shot her, there is no dispute that she had pursued him over a distance of 150 to 170 feet in roughly 12.5 seconds. She was thus moving at 12 to 13 feet per second, and when at most 20 feet away would have reached Trieu in less than 2 seconds. The trial court did not err in concluding that none of the differences in the various witnesses' respective factual accounts could affect the conclusion that Trieu acted reasonably under the circumstances.
3. The trial court did not abuse its discretion in rejecting the opinion of plaintiffs' expert.
Plaintiffs contend that the trial court abused its discretion in sustaining defendants' objection to an opinion stated in a report by an expert on police practices, former Los Angeles County Sheriff's Department Lieutenant Roger Clark. We disagree.
Aside from suggesting that Trieu violated an unspecified training instruction or guideline, Clark opined as follows: "When Deputy Trieu confronted Yanira Serrano while she was on her porch in front of her house, he had clear reasonable alternatives to rushing toward her. They included simply avoiding contact with her. He was aware that she was suffering from mental illness and [had] a knife. There was no report that she was threatening or otherwise posing a risk to her family. Further, Deputy Trieu claims to have seen the family standing outside the house away from Yanira Serrano. . . . [N]o imminent threat . . . required him to aggressively confront Yanira Serrano by running toward her from the street as he did. . . . Further, Deputy Trieu failed to wait for backup who[] he knew was in the general vicinity and . . . would have a canine available. . . ." Clark also opined that "[g]iven Yanira Serrano's physical limitations and the distance between her and Deputy Trieu, she did not pose an immediate threat of death or serious bodily injury to him," and that, "[u]ltimately, Deputy Trieu's decision to shoot and kill Yanira Serrano was unreasonable given the totality of the circumstances that existed at the time of the shooting."
Clark stated that Trieu "did not follow the tactical guidelines, required of every certified law enforcement officer" and that "his training required that he refrain from such an aggressive and confrontational approach when dealing with mentally ill suspects, wait for his backup, and formulate a safe tactical approach [that] takes into account all of the circumstances." In his "summary of relevant facts" report Clark stated that Trieu had testified that his training for handling section 5150 calls "was to wait for a partner, make observations and prepare a tactical plan to de-escalate the scenario," but only two passages of Trieu's deposition transcript submitted by plaintiffs offer any support for that contention. In one, Trieu answered affirmatively when asked "did your training provide guidance that you should, to the extent possible, make observations of the circumstances, if feasible, before announcing your presence"; in the other, he agreed that "it would be improper . . . under the circumstances [he had] described, to blindly run into a 5150 scenario." That testimony falls far short of establishing that Trieu violated any specific tactical guideline or training that would have required him to wait for backup before proceeding to plaintiffs' home regardless of exigent circumstances like those which a reasonable officer in his position could have concluded were present in this case.
On appeal, plaintiffs address only the exclusion of Clark's opinion regarding the reasonableness of Trieu's conduct in immediately approaching plaintiffs' home.
The trial court considered these conclusions speculative and inadmissible under Evidence Code section 801, which limits the opinions an expert may express to those related to a subject "beyond common experience" and based on matter "perceived by or personally known to the witness or made known to him . . . of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject."
The court did not abuse its discretion by excluding Clark's opinion. Initially, the opinion rests in large part on "assumptions of fact that are without evidentiary support" (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510), namely, that there was no report that Yanira posed a risk to others, and no imminent threat requiring Trieu to run toward her location. To the contrary, it is undisputed that the last update Trieu heard before leaving his patrol car was that Yanira had left her home wielding a knife, and that the 911 caller was unsuccessfully urging her to put it down. Indeed, Trieu testified that, following this update from the dispatcher, he was concerned for the safety of Yanira, the caller, and anyone else in the vicinity.
More importantly, insofar as Clark based his opinion on facts rather than unsupported assumptions, he expressed no more than "legal conclusions or 'ultimate' facts" that the trial court was free to disregard. The Court of Appeal in Brown v. Ransweiler, supra, 171 Cal.App.4th 516, held that a declaration by Clark, although not excluded from evidence, failed to create a triable factual dispute material to the question of whether law enforcement officers had acted unreasonably in using deadly force. (Id. at pp. 529-533.) The Brown court emphasized " '[t]he general rule . . . that conclusions of fact are not binding on a summary judgment motion.' " (Id. at p. 530; see also Williams v. Coombs (1986) 179 Cal.App.3d 626, 638 [" '[It] is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court to decide.' [Citation.] Consequently, the 'opinion of a witness on a question of law is obviously incompetent.' "], disapproved on another ground in Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 885-886.)
That principle applies here. Clark's opinion as to how Trieu should have approached the situation reported by the dispatcher, and why his actual conduct was negligent, amounts to an improper legal conclusion on the ultimate issue of negligence, framed as an expert opinion. (See, e.g., Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 348 [noting that "federal courts have been highly critical . . . when an expert offers legal conclusions as to ultimate facts in the guise of an expert opinion" and holding that plaintiff's expert did so, in case involving police shooting of knife- wielding, intoxicated subject, "by inappropriately drawing legal conclusions concerning such matters as the objective reasonableness of the deputies' conduct"].) Similarly, Clark's opinion here did not compel the court to accept plaintiffs' argument on the ultimate question of whether a reasonable jury could find Trieu's conduct unreasonable.
Disposition
The judgment is affirmed.
Pollak, Acting P.J. We concur: Jenkins, J.
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.